Skepticism

EVENTS

She’s baaaack

Remember Republican legislator Cathrynn Brown’s bill that would have criminalized abortion on the claim that it would destroy evidence? She scurried to retract it after nationwide public shaming, but now she’s revised the bill and is trying to promote it again.

Good news! It no longer threatens women who get an abortion after a rape with a felony charge for tampering with evidence! Yay!

There, problem solved. She’s only looking to punish the doctors, not the victims of rape. So now rape victims won’t be subject to this law, they won’t face any punishment. Other than, you know, not finding a doctor who wants to risk punishment for doing a legal medical procedure so that a woman won’t have to carry her rapist’s baby to term.

Since Democrats hold a majority in both the New Mexico House and Senate, I see little chance of this bill passing. Further, since the law is to only apply in abortions where criminal charges might be filed and the only evidence is genetic, what is to prevent the aborted fetus from being frozen and turned over to the police? I am more inclined to blame stupidity here, rather than malice.

If this is the bill, it is a specific intent crime, which means that the person can only be convicted of tampering if the person acts with the specific intent to do the very thing the statute prohibits. The Bill defines tampering with evidence as follows:

“30-22-5. TAMPERING WITH EVIDENCE.–
A. Tampering with evidence consists of destroying, changing, hiding, placing or fabricating any physical evidence with intent to prevent the apprehension, prosecution or conviction of any person or to throw suspicion of the commission of a crime upon another.”

The statute limits prosecution to those that would try to prevent the apprehension, prosecution, or conviction of the person who committed the rape or the person who tried to cast suspicion upon another person. As I read the Bill, doctors performing abortions at the victims’ request aren’t violating the proposed statute, because 1. they aren’t trying to aid the perpetrator and 2. they can and probably will preserve DNA evidence. If there is no intent on the part of the doctor to prevent law enforcement from getting evidence or to intentionally aid the perpetrator, the doctor is not guilty of violating this proposed statute.

B. Tampering with evidence shall include a person committing criminal sexual penetration or incest procuring or facilitating an abortion, or compelling or coercing another to obtain an abortion, of a fetus that is the result of the person’s act of criminal sexual penetration or incest with the intent to destroy evidence of the crime. In no circumstance shall the mother of the fetus be charged under this subsection.

Subsection B, pertains to the rapist only. Now, the rapist, according to the way subsection B reads, will only be punished with tampering for compelling his victim to get an abortion, if his intent is to hide or destroy evidence that could be used against him or to somehow shift culpability upon someone else. The Bill very tellingly does not make it a crime, in itself, for the rapist to force his victim to get an abortion, unless he is trying to hide his culpability (the rapist could just be carrying on his sadistic, twisted torture of his victim, by forcing an abortion without trying to hide the evidence—not highly probable, but I’ve seen cases in which people have done some very twisted things).

I think the Bill is poorly written. It should read something along the lines of, “Any person who has committed a sexual assault, who then forces his victim to get an abortion, shall be guilty of tampering with evidence.”

More often than not you don’t really remove the bullet. Bullet removals are actually pretty rare.

Indications for bullet removal

1. Dermatological bullets and in pressure areas where the bullet causes pressure related pain.
2. Cosmetic Distress
3. In a joint space
4. Globe of the eye
5. In a vessel lumen causing ischaemia or embolisation
6. At a nerve or nerve root.
7. Abscess
8. Required for forensic investigation and the patient and surgeon both agree that the removal will not unduly harm the patient.
9. Elevated lead (usually children – Yes you can get lead poisoning from bullets)

Generally gun shot wounds need no intervention unless they have damaged an artery. Antiseptic, Antibiotic and Dry Dressing are sufficient. Even closure may not be necessary.

Every time I see bills like this I wonder why AMA and ACOG, at the least, aren’t all over this. They’ll practically jump down legislators throats at the least sign of cutting reimbursement, but bills that can get their members imprisoned or killed (like the one somewhere in the deep south that required every abortion to be publicly recorded including the name of the practitioner) they’re apparently cool with. WTF?

congaboy The problem is the question of “intent”. If the rapist were to contact his victim and say, “Have an abortion or I’ll kill you.” Suddenly it becomes a crime to have an abortion, even if the victim wanted an abortion anyway.

The fact is the bill writer is against any kind of abortion for any reason and as such any bill she submits regarding abortion will be poorly worded and could be used to intimidate doctors and punish women.

@17: This version of the bill is the amended version that the sponsor, presumably, went over carefully to make sure it said just what she wanted. If it is worded in such a way that it could be used to intimidate and prosecute doctors then that is the intent.

NPR’s Fresh Air program hosted an excellent interview with a woman who was subjected to the anti-factual, anti-abortion, anti-woman laws in Texas. Transcript and podcast available at the same link.

Except:

… the doctor – he or she – would also play the fetal heartbeat as well, for you to hear. The doctor would then have to read through a formal script, written by the state, about the abortion procedure as well as the risks of abortions. And two of the risks that are mentioned in this list are an increased chance of getting breast cancer, as a result of having an abortion; and an increased chance of having negative psychological outcomes – both of which, I should point out, have been discredited by mainstream medical science. Nonetheless, these two discredited facts, as well as – sort of unnecessarily graphic description of the abortion procedure itself, are part of the government script that a clinician must read to a patient before the abortion can go ahead.

Other parts of the requirements, as well, is that before the woman can go ahead with the abortion, she must also listen to a government script that tells her that the father of the child is liable to pay child support, whether he wants the abortion or not; and that the state may or may not pay for your maternity care. So these are all things that have to be included in the script that the woman hears, regardless of whether she wants to have this abortion or not….

…for any woman in early stages of pregnancy – and in fact, you know, thousands of women in the last year have had to have a government-mandated transvaginal probe, for no medical reason.

Brown said in a statement Thursday that she introduced the bill with the goal of punishing the person who commits incest or rape and then procures or facilitates an abortion to destroy the evidence of the crime.

congaboy #11 quotes from the bill, and it seems to support this interpretation. In which case — wtf again.

Are there really a lot of rapists who force the victim to have an abortion in order to destroy the evidence? Wouldn’t a record of an abortion be enough evidence if Defendant X later accuses someone of the crime? Is a DNA analysis of a baby routinely used to either implicate or exonerate an accused rapist? And for that last one — would a woman pregnant by another man be expected to win on a false rape charge because she was “smart” enough to get an abortion? Inquiring minds want to know.

This entire bill is so strange that I guess, just for the sake of argument, I’m exploring the given rationale behind it to see if maybe this isn’t a totally fucked-up reason to prevent abortion by any means possible … and it instead turns out to be a fucked-up reason to prevent some actual crime which may or may not need to be addressed (the odds are small, but not vanishing, I think.) I don’t know enough about Brown to know if she gave some sort of specific example of the type of thing she’s worried about. Or at least claiming to be worried about.

The bill I read does not appear to make an abortion from a sex assault illegal. If the author intended to make all abortions stemming from sex assault illegal, she failed. The bill I reviewed would make it difficult to convict a doctor who performed an abortion, unless the prosecution could show that the doctor knew the pregnancy was the result of a sex assault and the doctor then tries to hide or alter the evidence with the intent to prevent the perpetrator from being caught. The prosecution has to establish mens rea, “the guilty or criminal mind.” The doctor has to intend to violate the statute. If a victim was coerced by her perpetrator to get an abortion and she went to a doctor, but didn’t tell the doctor that the pregnancy was due to a sex assault, the doctor does not have the requisite mens rea. The bill does not make it illegal for a woman to get an abortion and it does not make it illegal for a doctor to perform an abortion, as long as the doctor has no criminal intent.

I looked at both versions. The first one certainly could have been used against a rape victim, if the victim herself intended to hide that the rape happened. (A real possibility, given the prospects facing a rape victim.)

This new one is quite clear that the victim can never charged: “In no circumstances shall the mother of the fetus be charged under this subsection.” It also is clear that the primary target is the rapist:

“Tampering with evidence shall include a person committing criminal sexual penetration or incest procuring or facilitating an abortion, or compelling or coercing another to obtain an abortion, of a fetus that is the result of the person’s act of criminal sexual penetration or incest with the intent to destroy evidence of the crime.

(Emphasis added.) Written as it is, a prosecutor would face an uphill struggle trying to use this to charge someone else under an accomplice liability theory. At least as it stands, I have to say that it appears that the provision would be hard to apply against anyone but the assailant.

More often than not you don’t really remove the bullet. Bullet removals are actually pretty rare.

Since the non-dissolving internal sutures from my last abdominal surgery spent a few months working their way to the surface as my body rejected them , ultimately migrating to the point where my a sore opened up on my stomach, ulcerated and started spitting out thick green twine that looked like cannon wick, I’d say in my case it would probably be a good idea to remove any bullets.

It’s that tendency of mine to migrate out foreign objects that made me decide against an ampallang.
Could’ve turned out tragic.

Back on topic, this proposed law is outrageous, but the sad part is that such outrages are so typical that the response gets ton be essentially “Oh yeah, Republicans are still Republicans – I forgot for a second.”

What *I* don’t understand is people like my father who are pro-choice, anti-government interference, but remain Republicans and would rather die (and he WILL die) before voting for anyone else.

They are valuing something else above their own opinions, above their own grudgingly-acknowledged discontent. What the hell is THAT?
What is the hold the GOP has on THEM? What’s the “more important matter” to THEM?

I’m glad you noticed that her original intent is still intact. If she really gave a danm about the victim, she would have instead written a law concerning how to save the evidence for future litigation. That she didn’t even consider that makes it painfully clear just what her motives are.

And since she took down her email cath@cathyrnnbrown.com and complained in the press suggests that she feels like a victim. Poor baby.

B. Tampering with evidence shall include a person
committing criminal sexual penetration or incest procuring or
facilitating an abortion, or compelling or coercing another to
obtain an abortion, of a fetus that is the result of the
person’s act of criminal sexual penetration or incest with the
intent to destroy evidence of the crime. In no circumstance
shall the mother of the fetus be charged under this subsection.

It isn’t so much poorly worded, as it is worded in legalese. Here’s my take on the functions of the various “or”s in there, with English outside the brackets, Legalese inside:

“B. [Tampering with evidence shall include] A person is guilty of tampering with evidence if that person is a rapist [a person committing criminal sexual penetration or incest] and that person does one of the following things:
{1. [procuring or facilitating an abortion,] OR
2. [or compelling or coercing another to obtain an abortion,] } (<—-extra brackets because in my reading these two thing are a disjunctive "or")
AND
that abortion ends a pregnancy that resulted from that rape [of a fetus that is the result of the person's act of criminal sexual penetration or incest]
AND that rapist did these acts with a contemporaneous intent to destroy evidence of the rape.
[with the intent to destroy evidence of the crime.]
Oh yeah, lip service.
[In no circumstance shall the mother of the fetus be charged under this subsection."]

I actually agree with both the assertions in happyabo‘s #24. I think where the confusion comes in is between “incest” and “procuring.” There should be a “who” in there, with the attendant verb changes. If there were a comma between those two words, I think the argument for applying it against a physician would be stronger, because that would be more of a list of bad things that could be done, rather than, as I see it, a list of things a rapist has to do to be guilty under this section.

The only thing that gives me pause about who the passage can be applied against is the verb “procuring.” Because who can procure an abortion but a person with a uterus that is occupied by an unwanted fetus? Very weird (and fishy) construction to word it that way. But, the last line clears that up. However, it seems like an unnecessary law that is designed to limit access to abortion. Forcing someone to have an abortion is already illegal, IIRC. And intending to destroy evidence is already illegal. It’s a redundant bit that is probably serving a “tough on crime” blustering constituency and a very strong misogynistic one. The penalties are not higher or different in any way for destroying evidence with an abortion (and as pointed out above, such DNA evidence could be preserved anyway). So this reeks of the anti-choice lobby.

All this said, I have been wrong in my legal analyses before and am open to correction.

Exactly that is why that woman should have the option to tell her doctor in confidentiality so the material can be extracted carefully and preserved propperly for the case she is in the situation to press charges.

And yes. There should be public funds available to ensure propper contamination-free processing and storage of the specimens.

The revised version of the bill that I saw would still put the doctor in jeopardy as long as you ignored one of the clauses in the statement about criminal intent. And no one even suggests that there aren’t prosecutors like this Brown woman (a lawyer) who would do just that. What doctor would want to get involved in the hassle?

As for her motivations, she has a long history of being involved in Pro (pre-parturient) Life organizations.

Lynna @ 20 – I’ve often wondered why doctors and activists don’t fire back by offering more — and more factual — information. E.g., if the law requires the doctor provide a woman with an “unnecessarily graphic description of the abortion procedure itself,” why not also provide a graphic description of childbirth?

Exaggerate the risks of abortion? Okay then. See: Abortion Safer for Women Than Childbirth, Study Claims. Gordon, S., U.S. News (Jan. 2012) “The risk of death associated with a full-term pregnancy and delivery is 8.8 deaths per 100,000, while the risk of death linked to legal abortion is 0.6 deaths per 100,000 women…That means a woman carrying a baby to term is 14 times more likely to die than a woman who chooses to have a legal abortion…”

“Brown later said that the wording was a mistake by the drafter that she did not pick up on when reviewing the bill.”

My question is, who is this mysterious ‘drafter’ on whom she is blaming the drafting mistake? Is it ordinary and routine for anonymous people to bring legislators pre-written bills all ready to submit? Was the revision done by the same incompetent, and is that why the bill is still problematic? Inquiring minds want to know!

I am confused. Why are you all accepting the bill’s assertion that an embryo would be evidence relevant to the prosecution of / defense against a sexual assault charge?

Most acts of rape do not result in pregnancy, there is no way to identify from an embryo itself if it resulted from coerced as opposed to consensual intercourse, and the punishment for rape is usually the same regardless of if a pregnancy occurred.

I suppose there could be some fringe cases where the paternity of an embryo was relevant (a small but greater-than-1-person list of fertile male suspects, physical evidence of forced intercourse but no admissible DNA evidence recovered on exam, no potentially confounding instances of consensual intercourse, etc.). But in the vast majority of cases, the presence or absence of an embryo is not relevant to the crime.

Both versions of this bill are nonsensical, as well as incredibly offensive. I suspect that it also contradicts at least one federal law, but having opinions about that is beyond my knowledge of legalese.

As I read the Bill, doctors performing abortions at the victims’ request aren’t violating the proposed statute, because 1. they aren’t trying to aid the perpetrator and 2. they can and probably will preserve DNA evidence

Which is something I’m sure the lawyers will argue in court after the doctor in question has been arrested and hung out in the press as someone who not only kills babies, but also assists rapists in covering up their crimes.

It’s not so much whether you’ll be convicted. This is much more about the chilling effect of the possibility of a prosecution. This WILL be used by overzealous prosecutors to limit women’s access to abortion.

michaelbush
Exactly. The only case where this could be relevant, as Nepenthe mentioned, is incest.
Your stranger out of the bushes rapist doesn’t hang round to see what happens and in the majority of other cases the rapist doesn’t deny that he penetrated her, he denies it was rape. She wanted it, she didn’t say no, she came up to his room…

What *I* don’t understand is people like my father who are pro-choice, anti-government interference, but remain Republicans and would rather die (and he WILL die) before voting for anyone else.

It’s called party loyalty, and I hate it because it undermines the entire point of Democracy. What a responsible voter is supposed to do is review the policies put forward by each party at each election and vote on an election-by-election basis based on the extent to which they agree with the party platform as a whole. But that’s lot’s of work and people CBA, so instead they cultivate an ideological loyalty to one particular party based on nothing more than the rhetoric they hear from said party’s representatives, and vote for that party every election without fail with no more thought behind the decision than when they pick up their favourite brand of toothpaste at the supermarket. Because that’s what it is, brand loyalty, except much more harmful.

No offence to your father, of course. He’s only doing what pretty much every other voter on the planet does, I just really wish they wouldn’t.

You’re correct that most sex assaults don’t result in pregnancies. But, pregnancies do happen. In those cases the baby, if born, becomes exhibit A that intercourse did occur. The next element for the prosecution to establish is the lack of consent. I have had cases of sex assault in which the victim had become pregnant. In all of my cases, the victim carried the pregnancy to term. The cases I had were all underage victims and the baby was strong evidence that led to the quick conviction of the defendant.

This bill does create a chill that is intentional and inexcusable. I think that an over zealous prosecutor could interpret this to allow him or her to prosecute doctors. I think it would be hard to get a conviction, but as was said above, once the arrest and publicity happen, the damage is done and the message is sent to all of the other providers, that their carries are on the line.

My question is, who is this mysterious ‘drafter’ on whom she is blaming the drafting mistake? Is it ordinary and routine for anonymous people to bring legislators pre-written bills all ready to submit? Was the revision done by the same incompetent, and is that why the bill is still problematic? Inquiring minds want to know!

What *I* don’t understand is people like my father who are pro-choice, anti-government interference, but remain Republicans and would rather die (and he WILL die) before voting for anyone else.

It’s called party loyalty, and I hate it because it undermines the entire point of Democracy. What a responsible voter is supposed to do is review the policies put forward by each party at each election and vote on an election-by-election basis based on the extent to which they agree with the party platform as a whole. But that’s lot’s of work and people CBA, so instead they cultivate an ideological loyalty to one particular party based on nothing more than the rhetoric they hear from said party’s representatives, and vote for that party every election without fail with no more thought behind the decision than when they pick up their favourite brand of toothpaste at the supermarket. Because that’s what it is, brand loyalty, except much more harmful.

No offence to your father, of course. He’s only doing what pretty much every other voter on the planet does, I just really wish they wouldn’t.

Or they do what my father appears to have done, which is (initially) vote Republican because it benefits him financially as a person of fairly high income, and over time adopt other more recent associated Republican views he previously did not hold, presumably in order not to have to stop voting for them. He’s become socially ‘conservative’ to a degree that I never remember him being before. I actually heard him parrot that bullshit “adam and steve” non-argument, and I was like “but you don’t even go to church.”

So up until now it has been legal to force a woman to have an abortion?

No, but the fault used to lie with the one doing the coercing.
With this, it would be the fault of the coerced.

The legislator involved appears to believe that abortions simply aren’t shaming or frightening enough for women currently, and she’s out to “correct” that in any way she can. If you’ve lost the fight to make something illegal, you can always work to make it humiliating, labyrinthine, nerve-wracking, and in short supply. Almost as good.

This bill does create a chill that is intentional and inexcusable. I think that an over zealous prosecutor could interpret this to allow him or her to prosecute doctors. I think it would be hard to get a conviction, but as was said above, once the arrest and publicity happen, the damage is done and the message is sent to all of the other providers, that their carries are on the line.

Thank you.
Also, I think we can be absolutely certain that, should this bill pass, it will be equally applied to all possible cases, regardless of the income level or social status of the doctor or patient, right?

The next element for the prosecution to establish is the lack of consent.

(trigger warning? not sure how to go with this)
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Oh yeah, that’s no problem at all. I mean, as long as she didn’t dress wrong, and wasn’t at a party, and isn’t in a relationship with the rapist, and… you know where I’m going with this.
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(end)

If you’ve lost the fight to make something illegal, you can always work to make it humiliating, labyrinthine, nerve-wracking, and in short supply.

Every private enterprise that maintains a call center knows that – you can’t deny assistance to your consumers, but you can make it so annoying that they give up.

You’re saying that the victim having become pregnant makes it easier to convict the rapist, because it illustrates that intercourse did in fact occur, right?

But I am still confused. If a woman wants an abortion, then it is already known that she is pregnant. Why then would her having continued the pregnancy to term or not be relevant to the case? Are there many cases where the paternity of the embryo/fetus/baby matters as opposed to the fact that an embryo existed in the first place?

Or am I making a different mistake and over-estimating the rationality of the legal system?

If I were an OB, bills like this would make me think, “New Mexico? Feh, who needs it!” and go off to practice in Vermont or New York or Massachusetts instead. So not only will things like this make it harder for women to get abortions, they’ll make it harder for women who want to continue their pregnancies to get OB care. NM already has a shortage of physicians. Guess what this bill is going to do for that shortage? Heck, even if it doesn’t pass, are new OBs going to want to go someplace where something like this might become law at any moment?

There are a number of elements that the prosecution has to prove beyond a reasonable doubt before a jury can return a verdict of conviction. One is that the act actually took place. Another can be lack of consent. Consent is a defense to sex assault. It is not a defense in cases in which the victim was a child. The cases I have had, in which a pregnancy occurred, the victim was a child. Once the victim’s age was established, consent was no longer a defense. The question was whether there was sexual contact; the babies in those cases (and their DNA) confirmed that the defendant was the father and as such the perpetrator of a sex assault on a child. I believe that DNA retained from an aborted fetus could be used to establish paternity, just as it would from a baby brought to term. I have never had a case in which DNA was obtained from an aborted fetus.

As congaboy says, there are some cases where consent is not an acceptable defense, because there are some people who are not capable of consenting to sex.
Therefore, proof that sexual contact took place (minus proof of something else, like some random third party perpetrating an insemination or something equally unlikely) is prima facie evidence of statutory rape.

These situations include the victim being a minor, the victim being mentally disabled, and incest.

I understand the point that evidence that intercourse took place is sometimes all that is necessary to establish that rape occurred. And pregnancy is certainly sufficient evidence that sexual contact was involved somewhere.

My confusion was if the paternity of embryos/fetuses/babies is actually relevant evidence in establishing the identity of a significant number of perpetrators. From what congaboy has said, apparently it is. I stand corrected.

Of course, that is in no way a justification of the offensive nonsense that Brown proposed.

If I were an OB, bills like this would make me think, “New Mexico? Feh, who needs it!” and go off to practice in Vermont or New York or Massachusetts instead. So not only will things like this make it harder for women to get abortions, they’ll make it harder for women who want to continue their pregnancies to get OB care.

This is probably true for most OBs, which is why it can never be said often enough that the ones who insist on remaining in states that are hostile to what they do, often at risk to their own lives are heroes.

Not saying you were implying otherwise, but like I said, it’s never too often to say it.

This is probably true for most OBs, which is why it can never be said often enough that the ones who insist on remaining in states that are hostile to what they do, often at risk to their own lives are heroes.

I agree but the fact remains that they are the exceptions. The average OB is going to try to go elsewhere or identify as completely “pro-life” and refuse to do even life saving abortions.

Since the purpose of the law is preservation of evidence in rape cases wouldn’t it make more sense to have the foetus surgically removed and preserved in a specimen jar pending introduction as exhibit A at trial? How can you present it as evidence if it’s still inside the woman? Details, details……..